Anderson and Office of the Public Service Commissioner
(2005 F0712, 7 December 2006)
section 43(1) - legal professional privilege - implied waiver – whether waiver is a relevant issue - summary of legal advice and statement that the summary is based on legal advice constitutes waiver
The applicant applied to the Public Service Commissioner for access to a letter from Crown Law to the Public Service Commissioner (PSC) which contained legal advice (the matter in issue). A summary of the legal advice and a statement that the summary was based on legal advice was distributed in a pro forma letter by the PSC or the Office of the Public Service Commissioner (OPSC) to twenty-nine Directors-General (or equivalent) and twenty-six Human Resources Managers (or equivalent) of government departments/agencies. A Director-General subsequently wrote to the applicant and included in his letter a summary of the legal advice and a statement that the summary was based on legal advice. At the initial decision and internal review, the matter in issue was claimed to be exempt pursuant to section 43(1).
Assistant Commissioner Henry found that the terms of section 43(1) invite and require determination of whether the legal professional privilege (LPP) has been waived. Further, AC Henry found that, regardless of whether the privilege-holder is narrowly construed to be the PSC or OPSC, or more broadly interpreted as the whole of government, LPP over the matter in issue had been waived by conduct inconsistent with the maintenance of LPP, by either the PSC’s or OPSC’s wide distribution of the pro forma letter, or the Director-General’s subsequent letter to the applicant. Accordingly, AC Henry found that the matter in issue was not exempt from disclosure on the basis of section 43(1).